The United States Supreme Court recently decided Kansas v. Cheever, 571 U.S. _____ (12/11/13), which discusses whether the Fifth Amendment prohibits the Government from introducing evidence from a criminal defendant’s court-ordered mental health evaluation to rebut the defendant’s presentation of expert testimony supporting a voluntary intoxication defense.
The defendant was charged initially in the Kansas state courts with capital murder. In an unrelated case, the Kansas Supreme Court invalidated the State’s death penalty scheme. The State then dismissed its charges and allowed federal authorities to prosecute the defendant under the Federal Death Penalty Act. In the federal case, defendant sought to introduce evidence of his intoxication by methamphetamine at the time of the offense, asserting that this negated his ability to form the intent requisite to the offense. The District Court ordered Defendant to submit to a psychiatric evaluation to assess this issue, and a psychiatrist interviewed Defendant for approximately five to six hours.
The federal case went to trial, but was subsequently suspended and dismissed without prejudice. The U.S. Supreme Court also reversed the Kansas Supreme Court’s decision, finding that the State’s death penalty statute was constitutional. Kansas then commenced a second prosecution against Defendant who, in turn, presented a voluntary intoxication defense supported by testimony by a professor of psychiatric pharmacy. The State then sought to rebut this with testimony from the psychiatrist who previously interviewed Defendant in connection with the aborted federal prosecution. This testimony apparently included statements Defendant made during the Court-ordered evaluation. Defense counsel objected, arguing that such testimony would violate Defendant’s Fifth Amendment rights since Defendant had not voluntarily agreed to that examination. The trial court agreed with the State, but the Kansas Supreme Court reversed.
The U.S. Supreme Court reversed. The Court discussed the impact of Estelle v. Smith, 451 U.S. 454 (1981) and Buchanan v. Kentucky, 483 U.S. 402 (1987) on the matter at bar, and held that the State could introduce the disputed testimony on rebuttal because Defendant had affirmatively made an issue of his mental state to commit the offense. Thus, “the State permissibly followed where the defense led [and] [e]xcluding this testimony would have undermined  the core truth-seeking function of the trial.”
The Cheever Court’s holding is not at all surprising. It is, however, striking because it calls attention to the powerful (and sometimes unexpected) effects of mental health examinations in criminal cases. As the Court observed, “the basic tool of psychiatric study remains the personal interview, which requires rapport between the interviewer and the subject.” Defense counsel typically tried to control almost everything their client says so as to prevent them from making any damaging admissions but, at the same time, obviously has no control over what happens during this very significant interview. Indeed, defense counsel is typically not present when a mental health professional interviews their client. This is true for two reasons: (a) the mental health professional correctly insists that their meeting with the defendant be private; or (b) counsel simply does not want to take the time to attend.
There are several things criminal defense attorneys should do when mental health evaluations are prepared in connection with a criminal prosecution. If a court orders the defendant to be evaluated, counsel is entitled to more than a copy of the evaluation. Counsel also is entitled to the examiner’s back-up material. Thus, if a psychiatrist performed the exam, counsel should request the psychiatrist’s notes. If a psychologist performed the exam, counsel should request the supporting test data (e.g., test score sheets, and the like).
Counsel should then have this material reviewed by a defense expert and possibly, after careful consideration, have the expert prepare a defense evaluation. Begin by choosing the correct expert for the needs of the case, since psychiatrists, psychologists, LCSWs, and the like, all have different training and perform different functions. Counsel should provide their expert with all discovery material. If the defendant gave a statement after being arrested and the statement was both transcribed and video taped, counsel should give their expert both versions for review. The expert will see non-verbal material in the video that cannot be discerned from the print version. Further, counsel should not just sit idly and wait for the defense evaluation to appear, but should discuss the case and the expert’s impressions with the expert prior to the preparation of any written report. Additionally, counsel should not attempt to write the report, dictate the content of the report to the expert, or use experts that prepare “results-oriented” reports. The hollow nature of such reports will almost always be exposed on direct examination of the prosecution’s expert, or cross-examination of the defense expert. Finally, counsel needs to remember that mental health examination reports frequently contain both helpful and hurtful information. Counsel therefore needs to develop a strategy that will allow for maximizing the benefit of the former while controlling any damage from the latter.
This all sounds very basic. However, given the number of individual in our criminal justice system that have some sort of mental health condition, defense counsel needs to be sensitive to these issues at all times.